Badrinath: Welcome to Ideas and Insights, a show devoted to exploring novel perspectives on contemporary issues.

I am Badrinath Rao your host.

The United States has the dubious distinction of being a global leader in mass incarceration, with 1.7 million individuals behind bars, a 500% surge over the past four decades, and a staggering 3.9 million people on probation or parole on any given day.

Our criminal justice system is failing.

Report $7 billion into courts annually at the state and federal levels.

State and federal spending on prisons exceeds $90 billion annually.

State and local spending on policing surpasses $160 billion.

Yet our criminal justice system is dysfunctional.

It fails to prevent crime and does not deliver enough justice.

Mass incarceration, lengthy prison terms and wrongful convictions are distressingly common.

The most vulnerable segments of the population African Americans, Hispanics, and the poor disproportionately bear the brunt of our lopsided penal policies.

The decay of our criminal justice system is unfolding in the background of sharp political divisions, deep polarized among people, and the rise of populist politics.

These trends suggest a troubling erosion of our democracy.

Could these two phenomena be linked?

Do we need to reform our criminal justice system to restore our democracy?

I will explore these questions with my guest, Professor David Sklansky, a leading authority on criminal justice reform, and Stanley Morrison, professor of law at Stanford Law School in California.

He is the author of Criminal Justice in Divided America Police punishment, and the Future of Our Democracy, published by Harvard University Press.

This year, welcome to Ideas and Insights, Professor Sklansky Thank you for joining us today.

David: And it's a pleasure to be here.

Thank you for inviting me to be on the show.

Let us begin with the main thesis of your book.

The central argument in your book is that there is, on the one hand, the steady erosion of criminal justice in the United States and the rise of what you identify as the twin challenges of populism and the erosion of democracy.

And you argue that reforming the criminal justice system is critical to strengthening our democracy.

Now, these are two seemingly separate spheres.

How are the two connected?

David: I think they're connected in three different ways.

First of all, failures of the criminal justice system, had a lot, a lot to do with the rise of authoritarian populism, the rise of divisive forms of politics, the rise of polarization in the country, the failure of the criminal justice system to protect people against crime, the failure of the criminal justice system to treat people fairly and without regard to their race.

All of that eroded popular confidence in government and contributed to the politics that we have today.

The second connection is more hopeful.

I think that by reforming the criminal justice system in the right ways, we can help to repair our democracy.

And then the third connection is that, I think if we're going to reform the criminal justice system productively, we need to take into account our current polarized politics.

And, adopt policies that can survive and prove effective in that climate.

badrinath: Before I proceed any further, Professor Sklansky, let me ask you a conceptual issue that you raise right at, the outset of your book.

You seem to have a problem with this notion of democracy as, popular sovereignty as the will of people.

And you say it's a deeply flawed idea, and instead you, advocate democratic pluralism as a more appropriate framework for, working towards strengthening our democracy.

What is democratic pluralism and why do you think it's a better alternative than democratic sovereignty?

David: So I think that there are basically two different ways you can think about democracy.

One is that democracy is all about giving the people what they want, putting the people in charge.

And, I call it popular sovereign The problem with that approach is that it's a big country.

We have lots of different kinds of people with lots of different opinions.

So, saying that we're going to put the people in charge doesn't tell you what policies we're going to adopt, and saying that we're simply going to, allow a majority of the people to have their way doesn't really provide a good guide, either.

For one thing, a lot of people haven't thought through a lot of criminal justice questions.

They may not have firm opinions about it.

And for another thing, for criminal justice policies to be effective, we need to build policies that can work in a society where lots of us are divided from each other.

So the other view of democracy, is democratic pluralism.

This this view of democracy doesn't view democracy as about putting the people in charge or translating the people's will into policy.

Instead, it takes as a given that we there are lots of different people.

They disagree about a lot of different things, and we need to figure out processes and procedures that will allow a diverse society to govern itself peacefully and fairly.

That will allow, a group of people who disagree about lots of things, nonetheless, to work together, and come up with solutions that can, be acceptable to a broad section of, society across ideological boundaries.

Badrinath: So if I understand you correctly, Professor Sklansky, you are saying that given the vast range of conflicting opinions that we have on a whole range of issues from, criminal justice reform to abortion to gun control and all the rest of it, you're saying that democratic pluralism is the framework that will reconcile these opposing perspectives and find a middle ground?

Is that what you're saying?

David: Yeah, exactly.

And I think this is true in lots of areas, not just criminal justice, but criminal justice is the area that I know best, and it's the one that I wrote about.

And in the area of criminal justice, I think that reforms that don't take into account, differences of opinion, within a community or within a nation are not going to work in order for police reform, for example, to go anywhere, it needs to have staying power and it can't have staying power.

If, half the people in a community or half the people in a state or in the country oppose it.

So an approach to police reform, for example, that is responsive only to the views of people who are highly suspicious of the police and don't have, many concerns about their own physical safety from, other people in the community.

That's not going to work.

You need to take you need an approach to police reform that takes seriously the views of people who want to be protected against crime by the police.

Equally, though, an approach to policing that ignores the concerns of people in the community who distrust the police, who feel that the police are racist, who are concerned about police violence, that's not going to work, either, because it's not going to have staying power.

Badrinath: I will come to, your views on, the reform of the police force.

You have a whole chapter on that in your book.

But let me, take a step back and, discuss what I think is a singular, distinction of your book.

And that is the layered account you offer, of how this law and order discourse came to dominate American politics from the 1960s, leading to a bipartisan consensus on tough on crime policies and eventually metamorphosing into what you call Trumpian populism.

Can you briefly, for the benefit of our viewers, trace the trajectory of this discourse and tell us why we see the whole idea of law and order metamorphosing into something that many people are not comfortable with?

David: Yeah.

So you have to look backwards, and figure out where we came, how we got to this point.

And, it it's it's hard to remember, but it's true that, 40 or 50 years ago, people used to complain that there was too much agreement in the United States that that the, two main political parties, had too little differentiating, at them from each other.

And, that was because we had broad consensus on lots of, areas of policies.

And we have gone from there to an era of, I think venom polarization.

And, that process really began in the 1960s.

And a key feature of that process was the move of, the Republican Party steadily to the right.

And that's, a process that began with Barry Goldwater, his campaign for president, unsuccessfully in 1964.

It continued with Ronald Reagan's successful campaigns for governor in California, with Richard Nixon's campaigns for President and ultimately with Ronald Reagan's campaigns for president, and then with Donald Trump's elections.

And, when, at each step, the rightward movement of the Republican Party, was driven to a significant extent by the politics of crime, it was driven by concerns about, crime, about police not protecting people against crime.

And then it was driven further, in the late 1960s and early 1970s by, widespread rioting throughout the country.

The rioting itself was a response to concerns about the criminal justice system.

It was an outgrowth of concerns about the racism of policing, racism of of criminal prosecution.

And, I think that those two failures, the failure of the criminal justice system to be fair and the fury of the criminal justice, the adequately protect people against crime fueled, fury, resentment, and violence, in minority communities, particularly African-American communities throughout the country.

And it also fueled reactionary politics and politics that steadily moved, the Republican Party towards the right.

The result of those two processes was a third one.

It was, a spiral of criminal justice policies, of increasing severity with the Democrats and the Republicans competing with each other to see who could be toughest on crime, the part many of the policies that were adopted because of those politics did not protect us against crime.

Instead, they drove us to, greater and greater fear of each other, to greater and greater isolation of our communities.

And those processes, too, I think, further contributed, to polarization, and the increasing venom of our politics.

Badrinath: One of the factors that, perhaps needs to be emphasized is that as a result of the, rise of the rhetoric that you just now described concerning tough on crime policies, there emerged a consensus about what you call hyper militarized policing, and you have offered a trenchant critique of why it is, toxic and why we should abandon it.

Instead.

You talk about, a pluralist agenda for public safety.

What do you mean by this?

And how can we, bring this about?

David: So, in the, what I mean by a pluralist agenda for public safety is an agenda for public safety that reforms policing and also reforms prosecution and criminal trials in ways that, responds both to legitimate concerns about crime and legitimate desires of people of all races, of all income groups, of all political parties, a desire to feel safe, in the community from crime, but at the same time also responds to longstanding legitimate concerns about police violence.

Police racism, about, the disproportionate racial impact of overly severe criminal sentences.

So, what this means, for example, in the context of policing would be, recapturing much of the agenda of the community policing movement of the late, 19th of the late 20th century, the latter part of the 1980s, the 1990s and the early 2000, the community policing movement at that time was extraordinarily promising and I think deserves to be recovered.

But it also needs to be improved and fixed, because the community policing of the late 20th century and early 21st century didn't respond adequately to the complexity of the communities that the police were protecting.

It was overly responsive to the concerns of some people in those communities, and not responsive enough to the concerns of other people in the community.

Badrinath: Let me now turn to another issue that you flagged in your book, and that is what you describe as the untrammeled powers of prosecutors in this country and how that, leads to, miscarriage of justice.

And you also point out that the Supreme Court, has refused to, engage with this issue adequately.

Two questions arise.

First, why are you so keen on reining, in prosecutors and how do you think this process of, ensuring that prosecutors do not abuse their powers, their discretion?

How do you think that's going to help democratic pluralism in America?

David: Well, I should start by saying that, I was myself a prosecutor for years.

And, I think prosecutors are an important institution in the criminal justice system.

And, I'm not interested in, proposals, to, get rid of prosecutors or to, stop them from being powerful.

But I think there's a limit.

And, we can have prosecutors who are powerful, who are able to perform the important functions that our system gives to them, but that still don't have as much power, as, as as free wielding discretion as they do today.

We've gone overboard in, allowing in giving prosecute DA's sentences that they can threaten to drive plea bargains that are vastly longer than anything that, would be on the table in almost any other country that we'd want to compare ourselves to.

We've gone overboard in protecting prosecutors from oversight from judges or, other supervisory officials, again, to a degree that astonishes, legal observers from, most democratic countries that we'd want a comparison.

You know, the reason why, this is so important, is that we've arrived at a point in this country where we have vanishingly criminal trials, and instead, the vast majority of criminal cases are resolved through plea bargains, and prosecutors have too much power in the plea bargaining process.

They have too much power because they can threaten sentences of multiple decades for crimes that don't, deserve someone who's anywhere near that long.

If we took away some of what prosecutors could threaten so that they could threaten sentences that were more within the bounds of reason if we provided some reasonable constraints, on prosecutorial, decision making, if we provided some limited ability, for judicial review or prosecutorial decisions that are unreasonable, I think we could help rein in some of the excesses of the criminal justice system.

But again, it's really a question of of moderation, not of getting rid of prosecutorial power, but just bringing prosecutorial power back, to, the grounds of reasonableness.

Badrinath: That point is well-taken.

Now, aside from, making this very important argument about, reining in prosecutors, you also reposed great faith in the jury system.

In jury trials, you say that, the jury system must be strengthened and diversified.

Yeah.

And you also say that it will strengthen democratic pluralism.

What is it about the jury system that gives you so much hope?

And why do yo think it must be strengthened?

David: Well, if you're if you try to design a process that would help train people in the skills and orbits that Americans need, if we're going to learn to have productive discussions across ideological boundaries.

If you wanted to train people in the kinds of skills and habits that we need to lower the temperature of political discourse in this country and make it more productive and less poisonous, you'd come up with something that looks a lot like, a jury trial.

You'd want to bring people of different views and backgrounds together and give them a common task that they need to work together on.

And you'd want to provide a framework in which they, approach that task using reasoned discourse and argument.

That is what, jurors are asked to do.

And, when people serve on juries, their view of the jury system, vastly improves.

And that's because it's largely works when you bring the system that we have for asking jurors to come together and decide a case together works.

Jurors do reasoning across ideological boundaries.

And the more diverse the jury is, the more careful their discussion is and the more accurate their findings are.

So the jury system is a really good system.

It's a good way to resolve criminal cases, and it's a good way to build democratic skills and habits.

But for it to serve either of those purposes, jurors need to be truly diverse.

They need to be drawn from a real cross-section of the public.

And that doesn't happen enough today.

We don't do a nearly good enough job of making sure that jurors really represent the full diversity of our country, that people from all different backgrounds, can serve.

And, do serve on jury.

We don't do enough to make sure that, people of low income who may lose, their, daily earnings if they serve on a jury and nonetheless serve, we don't do enough to make sure that people who have terrorist responsibilities have help with those responsibilities so that they can serve on juries.

We don't do enough to make sure that people who need help getting to the courthouse get that help so that they can serve on juries, and we don't do enough in general to make sure that, we summons people for jury service in a fair way, that, spans the entire community.

And that those summonses reach the people that they're sent to and that people then are able to and do show up for jury service.

Badrinath: One last area of, analysis in your book is, about prison reforms.

You have looked at the entire, prison system, and you have critiqued everything from mass incarceration to probation.

Parole and financial sanction policies and basically, your book is a fervent plea for humanizing prisons.

And you say that back end strategies like, giving credit for good time, restorative justice policies and so on are absolutely essential in order to have enlightened penal policies.

Professor Sklansky, you are spot on and your arguments are completely, flawless.

The point, however, is you have outlined an ambitious, progressive, bold agenda.

Where do we begin?

Given that there is such a strong consensus that the best way to tackle crime is to be hard on crime and punish criminals, and we have a punitive attitude, what do you think it will take to reverse this mindset and humanize this process?

David: Well, I actually think that, there's a very broad consensus across lines of ideology, across lines of race, across, socioeconomic groups.

There's a very broad consensus that criminal justice is too harsh and, needs to be brought down to earth in many ways.

That doesn't mean that everybody agrees with that, and it doesn't mean that there aren't lots of people who think that in some ways, the criminal justice system isn't tough enough.

What it means is that I think, you can, bring together people across political divides who agree that, among other things, we need to do, we need to shrink the size of our prison populations back to where something like what they used to be, and back to that, having a percentage of our population in prison that looks something like every other democratic country that we want to compare ourselves to.

I think that there are lots of conservatives who believe this.

And, there are lots of opportunities to build bridges between people of different ideologies on this.

I mean, President Trump, during his first term, signed the first step out, which was a simply a first step.

But it was an important step towards bringing down levels of incarceration through back end measures like humanitarian release, early eligibility for early or supervised release from overly long sentences that I think can can find a lot of support across the political spectrum.

But, in order for us to advance that kind of thing, we need to start talking to each other, talking across political boundaries.

And we need to do that not just at the national level, but also and more importantly, at the state and local level, because most criminal justice gets done at the state and the local level, not at the federal level.

So there's lots of opportunities at the state and local level for people of different views and different backgrounds to join together in trying to make criminal justice better.

Badrinath: Professor Sklansky, you have offered a brilliant analysis of the pathologies of our justice system and outlined bold initiatives for reversing some, troubling trends.

Thank you so much for joining us today.

We appreciate your time and your insights.

Thank you much.

David: Thank you very much for having me.

Badrinath: That's it for today.

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Until then, goodbye.